McGill GLSA Research Series

Introduction: Law as Change and Survival

Michael Poon; Bastien Savin — Tue, 25 Oct 2022 00:00:00 -0400

Those Who Teach Must Also Do: Diversity, Equity and Inclusion in Legal Education and the Canadian Armed Forces

Michael Poon — Tue, 25 Oct 2022 00:00:00 -0400

Diversity, Equity and Inclusion (DE&I) initiatives have become a priority for many organizations within Canada. In legal academia it has become both a procedural and substantive imperative, as it grapples with meaningful integration of these considerations, and appropriate adaptation to current social and technological challenges. This paper sketches selected considerations in implementing DE&I within legal education, and transplants them into Canadian Armed Forces (CAF) engagements with DE&I implementation, with a focus on the transmission of legal norms and values in a non-legal environment and teaching context, using an explicitly socio-legal orientation. Drawing from legal education literature highlighting the challenges and opportunities within the university, and key insights regarding DE&I implementation’s history and current developments within the CAF derived by scholars in a themed-2020 conference, I argue that a process of translation and adaptation of legal education practices and engagement with DE&I into the CAF context will provide valuable insights into both communities of practice and transform and be transformed in the process, in particular with developing key concepts, solidifying abstract concepts and challenges, leveraging case study and simulation techniques, exploiting remote and hybrid pedagogical tools, and furthering legal education engagement outside the academy.

Legal Pluralism, Transitional Justice, and Ethnic Justice Systems

Yuri Alexander Romana-Rivas — Tue, 25 Oct 2022 00:00:00 -0400

Colombian law recognizes that traditional Indigenous and Black authorities can exercise legal jurisdiction and apply their laws and traditions in their ancestral territories. Despite this legal recognition, the legal system does not operate in a way that genuinely guarantees legal pluralism. In practice, higher courts repeatedly overturn or dismiss decisions by indigenous legal authorities.

As a result of the 2016 Peace Agreement between the Colombian Government and the former guerilla of the Revolutionary Armed Forces of Colombia – The People’s Army (“FARC-EP” in Spanish), a transitional justice tribunal was established: the Special Jurisdiction for Peace (“SJP” or “the Special Jurisdiction”). The Special Jurisdiction’s main task is to investigate and try the most serious crimes committed during the armed conflict, a conflict that has disproportionately impacted racialized communities. The SJP, unlike other tribunals in Colombia, has sought to adapt its work to meet the reality of legal pluralism by: 1) negotiating protocols for inter-jurisdictional interaction between the SJP and ethnic authorities, 2) consulting with Indigenous and Black communities on the adoption of some legal instruments, and 3) having a dialogue between equals with ethnic authorities when potential jurisdictional conflicts arise. This paper seeks to analyze this interaction and how it has allowed the Special Jurisdiction, as transitional justice mechanism, to work in close cooperation with Indigenous and Black communities in Colombia. As will be discussed throughout this paper, through the lens of the legal pluralism framework, such interaction has strengthened the legitimacy and recognition of Indigenous and Black communities’ legal authorities as parallel legal orders that can operate side-by-side with the State judicial system. This, in turn, has created an important precedent that can be emulated by other court jurisdictions in Colombia and elsewhere.

Cinema as (Tangible and Intangible) Cultural Heritage

Gianluigi Mastandrea Bonaviri — Tue, 25 Oct 2022 00:00:00 -0400

This research paper will put forward innovative solutions to strengthen the protection of cinema during armed conflicts, in particular by contending that cinema could be qualified as cultural heritage, thereby falling under the protection of the relevant international Conventions.

A special testimony made by artist Sergio Iovino will be first proposed, with a view to highlighting the importance to safeguard cinema and – broadly speaking – every kind of art in wartime. Moving from the current armed conflict in Ukraine, the paper will underline the need for a reassessment of the relevant international regulations. In particular, after having secured a comprehensive definition of cinema, still lacking in international law, it will propose an evolutionary interpretation of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (1972), the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).

The paper will then analyze the legal relations between International Humanitarian Law (IHL) and filmmaking, which remain nebulous. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict never refers to cinema, but simply mentions “objects of artistic interest” (art. 1), and already such a definition fails to accommodate cinema’s mongrel nature and complex production process. An adaption of IHL, starting from the 1949 Geneva Conventions and their Additional Protocols, will be therefore put forward in order to ensure that the art of filmmaking can enjoy legal protection in all phases of an armed conflict.

Beyond Multilateral Treaty Reforms

Luter Atagher — Tue, 25 Oct 2022 00:00:00 -0400

International trade law is primarily concerned with facilitating the flow of goods and services across national borders by minimizing tariff and non-tariff barriers to trade. However, there is a nexus between international trade and the environment. First, international trade is reckoned to have destructive environmental effects. The liberalization of global trade results in increased economic activity, including industrial processes, manufacturing, innovation of new technology, and extraction of natural resources from the earth and the sea, which inevitably results in environmental externalities such as biodiversity loss, pollution, and climate change. Second, international trade law intersects environmental law whenever trade restrictive measures such as import bans, export control and border taxes are adopted by states as a means of achieving environmental goals.[1] Such measures condition market access on the fulfilment of environmental norms related to the characteristic of the product or the process of its production. The World Trade Organization (WTO) currently oversees the largest multilateral regime for international trade. WTO covered agreements expressly recognises some exceptions to trade liberalization commitments for environmental objectives, this policy space is subjected to a system of strict limitations and review procedures designed to protect the global trading system from arbitrariness and disguised restrictions on trade. This scrutinized policy space accounts for the contention that the multilateral trading system constrains environmental regulation and requires treaty reforms for the purpose of adapting to contemporary environmental concerns. Others have focused on a change of approach in the reasoning of WTO adjudicators in their review of trade-restrictive environmental measures. However, the process of multilateral negotiations for new agreements needed to effect rule change is notably complex and has been fraught with deadlocks in the last couple of decades. The stalemate over appointment of members of the Appellate Body has hampered the effective functioning of third-party adjudication in the WTO and the prospect of ‘pro-environmental’ approaches in the interpretation of WTO law on environmental measures. Meanwhile, numerous environment-related measures continue to be notified within the WTO. I argue that notwithstanding the absence of treaty reforms, international trade law continuously evolves through various formal and informal norm-generating practices by member states and trade stakeholders. Viewed through the lens of legal pluralism, these practices contest, modify and transform normative meaning in the multilateral trading system thereby creating a permissive setting for trade-restrictive environmental measures within the framework of extant international trade law.

Introduction: The Many Meanings of Adaptation

Giusto Amedeo Boccheni; Bastien Savin — Tue, 25 Oct 2022 00:00:00 -0400

A form of transparency

A. Garnett Weiss — Tue, 25 Oct 2022 00:00:00 -0400

Strategic Climate Change Litigation: Potential for Legal Adaptation

Marie Desaules — Tue, 25 Oct 2022 00:00:00 -0400

With the increasing emergency of climate change and the lack of concrete action from States to adapt and mitigate climate change effects, number of legal and non-legal means of contestation emerged to try and accelerate climate action. Climate change litigation is one of them, notably trying to enhance legal adaptation. This contribution will argue that climate change litigation, when used strategically, can have direct and indirect effects to create a more effective climate governance. The hypothesis that will be tested is that climate change litigation cases have an impact that goes beyond verdicts, having the power to affect regulations’ enforcement and creation, and therefore participate in legal adaptation and more effective governance. The effects could be both direct, influencing the State to legislate, or indirect, for instance by co-opting the public opinion or the media. The contribution will start with an overview of the evolution of both climate change litigation and scholarship, as well as the definition debates. A second section will focus on strategic litigation, starting with the legal issues that arise in litigation and the strategic choices available for legal activists in first sub-section. Then, impacts as well as the ways in which strategic choices can maximise impacts of litigation will be analysed. The third part will present a Swiss landmark case: Union of Swiss Senior Women for Climate Protection v. Switzerland.

Air-Rail Alliances in the Context of Liability and Environmental Protection

Stefan-Michael Wedenig — Tue, 25 Oct 2022 00:00:00 -0400

Since the deregulation of airlines in the 1970s and 80s the aviation industry has constantly tried to find new ways to engage with the increasingly competitive aviation market by expanding their outreach through strategic partnerships and global alliances. Over the past 10 years airlines have strengthened their partnerships with railway companies to offer more convenient connections for passengers to their hubs and link remote areas to their route network. These Air-Rail Alliances have helped airlines to stay competitive in the modern aviation market. This short paper will briefly examine two legal issues pertaining to Air-Rail Alliance namely whether an airline can be held liable in case of an accident during the train leg of the journey and how Air-Rail Alliances help airlines to meet their carbon emission reduction goals under the European Union Emissions Trading Scheme (EU ETS) and the ICAO Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). Especially during the COVID-19 pandemic, Air-Rail Alliances proved to be a good vehicle for airlines to replace specific flights in their network. The paper will first explain basic terminology relating to the airline’s business before explaining the structure of Air-Rail Alliances in more detail. Afterwards, it will address the question as to whether an airline can be held liable in the case of an accident during the train leg of the journey. The paper will answer this question by arguing that airlines cannot be held liable under international aviation law but rather the train operator under the lex loci of the state in which the accident occurred. Finally, the paper will discuss the structure of both the EU ETS and CORSIA and argue that Air-Rail Alliances are a valuable tool for airlines to meet their CO2 reduction goals. It will be highlighted that both regimes are flexible and adaptive enough to take the unprecedented consequences of the COVID-19 pandemic into account and underline how the law can be adaptive in such a changing environment.

A Study of Legal Adaptation in China's Wind Power Development

Li Tian — Tue, 25 Oct 2022 00:00:00 -0400

Legal adaptation is considered a crucial part and one of the most effective tools of the global energy transition. The energy transition process promotes the rise of the renewable energy industry and brings a tremendous challenge to the law. How could or should the law adapt to the challenge of this global trend? This article will start this study from the case of Chinese wind energy development.
China is one of the fastest-growing countries in the world for renewable energy. Although the large-scale development of wind energy started in 2000, China's wind power installed capacity reached 300 million kilowatts by 2021, and power generation accounted for about 7% of the total electricity consumption . This year's installed capacity of coal power is approximately 1 billion kilowatts, but its power generation accounted for 71.27% of the whole country . Two energy sources with three times the difference in installed capacity have ten times the difference in power generation. Why is China's electricity market so biased towards traditional energy? How did the large-scale wind curtailment in China occur? And what role should the law play in China's energy transition game to adapt and regulate the development of the electricity market and guide China's energy transition?
This paper will use game theory to analyze China's power pricing system and the operation of China's national electricity transmission grid, so as to explore how the law has and should adapt to China's renewable energy development under its unique power market system and power administrative management system, to minimize the rent-seeking behavior generated in power transmission and support the development of wind energy. This paper will propose solutions to the problem of wind curtailment in China's energy transition from a legal adaptation perspective and provide a reference for other countries.

A Trans-Boundary Legislative Impact Assesment of the Kailash Sacred Landscapes

Debarati Pal — Tue, 25 Oct 2022 00:00:00 -0400

The Kailash Sacred Landscapes evokes a deep rooted religious affiliation for the Hindus in India, Nepal and the Buddhists in India, Nepal and Tibet Autonomous Region or the Xizang Autonomous Region. A myriad of international conventions, charters, declarations and guidelines emanating from UNESCO and ICOMOS and IUCN, pertaining to cultural landscapes and sacred sites have been documented and applied but the issues pertaining to the transboundary integrated approach remains abstract and obscure and remains to be evolved. In India, China and Nepal, since the ratification of World Heritage Convention, 1972, there are national legislations that recognises the notion of cultural heritage, relics, monuments and sites but does not recognise the notion of cultural landscapes, primarily because the interpretation of heritage is often monument based conservation or of built heritage. In the domain of natural heritage, the environment and the biodiversity Acts function in water-tight compartments and are not in coordination with their cultural counterpart.

The article aims to investigate and study the coherent issues pertaining to the nature-culture linkages and conservation relating to transboundary cultural landscape of Kailash Sacred Landscapes. The legislative framework of China, Nepal and India are taken into account, by exploring, comparing and distinguishing the vagueness in the creation and representation of cultural landscapes as defined or interpreted in the international conventions and charters. While studying the modes of adaptation, the article also explores the constitution and the role of the stakeholders (actors and institutions), local, intra-national and trans-national in the adaptation of a harmonious legislative framework.

Adapting International Standards and Ethical Principles to New Reproductive Technologies (NRTs) and Scientific Advances

Mariangela Barletta — Tue, 25 Oct 2022 00:00:00 -0400

The advancement of new technology raises ethical issues. Among them, human health, especially birth, is more frequently at the center of the discussions. Indeed, new technologies have the potential to radically alter human nature, such as modifying human reproduction. In recent years, it has been demonstrated that new technology can provide maternity surrogacy, as well as gene editing and the possible development of an artificial uterus. The legislative response to these issues is still fragmented and poorly regulated, inhibited by moral arguments as well as legal systems' inability to adapt to decades-old issues like abortion. A lack of permissiveness on the side of some governments is frequently the source of disadvantages. In the case of maternal surrogacy, for example, there are frequently documented cases of abuse and corruption as a result of legislative differences across jurisdictions. Indeed, the potential of surrogacy in certain nations encourages individuals to travel overseas and use artificial insemination treatments that are not authorized under their domestic laws. On the other hand, women who agree to give their uterus are frequently poor and forced to accept. In this regard, it would be ideal if many states could adapt their laws to scientific advancement. Looking ahead, similar harmful trends might be seen in the development of artificial reproductive systems, which has recently received research funding. As a response, the article proposes to look at how the law should adapt to the latest innovative advancements in terms of new reproductive technologies, examining what is now achievable and what could happen in the near future from an ethical perspective.

Shaping Citizenship in a Globalized World

Eleonora Iannario — Tue, 25 Oct 2022 00:00:00 -0400

Citizenship and membership in a nation state may constitute a significant element of identity. Every society looks for the legitimacy of the principles governing it within its own origins. Therefore, cultural diversity is synonymous with juridical and ethical difference, which can range from the recognition of several sources of legitimacy of law to a different relationship between these sources. In the legal sphere, each society’s constant pursuit of its own origins has its greatest expression in the rules of citizenship chosen. For example, the provision of citizenship tests within the EU Member States’ naturalization policies bears witness to this attitude, strengthening the requirements to obtain the citizenship. In fact, during the last decade, the European Union has experienced the rise of test-based forms of integration and this indicates the adaptation of the legal system to increasing flows of migration. Similarly, in the Middle East, the State of Israel represents a paradigmatic case of how the survival of cultural ties is nowadays maintained in granting citizenship. This also highlights how the national law adapts to the historical context in order to allow the respect of economic, political and social rights. Against the perceived Jewish diaspora, indeed, the State of Israel established the Law of Return (ḥok ha-shvūt), namely every Jew has the right to return and obtain, along with citizenship, other facilities to rebuild his life there (‘aliyah). Could these two approaches from Western Europe and the Middle East testify to a strong state sovereignty in choosing their ideal citizens? In conclusion, the purpose of the paper is to show how naturalization policies are deeply influenced by historical, cultural and social elements. Could therefore these naturalization systems be considered anachronistic in the context of the XXI century globalized world?

Cultural Relations Among States: is a Legal Adaptation Required?

Paolo Galdenzi — Tue, 25 Oct 2022 00:00:00 -0400

Cultural rights are an integral part of human rights. According to the International Covenant on Economic, Social and Cultural Rights (art. 15), the latter include the right to take part in cultural life, to enjoy the benefits of scientific progress and to benefit from the results of any scientific, literary or artistic production.

In order to promote the cultural dimension of human rights, cultural relations among States represent an important tool since they foster initiatives in different sectors (i.e., cinema, literature, music, design, fashion), thereby giving people a better chance to enjoy and develop cultural rights.

This essay will highlight the importance of properly defining and regulating cultural relations among States through an adaptation of international law, which currently lacks any provision on the issue. Although some international instruments mention cultural relations, they never provide a comprehensive legal framework for their development: The Vienna Convention on Diplomatic Relations (1961) merely acknowledges the existence of “cultural relations”; while the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) aims to encourage dialogue among cultures (art. 1), but never refers to cultural relations.

In order to fill this legal gap, this article will first examine some international tools connected with cultural relations. Secondly, it will consider the possibility to adopt a new Convention or act of soft law to define their core principles and values.

The overarching argument will hold that an adaptation of international law would help guarantee that the overall outcomes of cultural relations are greater connectivity, better mutual understanding, and enhanced sustainable dialogue between states, people and non-state actors, thereby significantly promoting a human rights-based approach to culture.

Armed Non-State Actors in International Humanitarian Law

Hani El Debuch — Tue, 25 Oct 2022 00:00:00 -0400

Today, non-international armed conflicts involving the participation of Armed Non-State Actors (ANSAs) are of remarkable significance, especially when compared to inter-state armed conflicts.[1] Yet, despite the significant role ANSAs play in modern-day conflicts, they constitute an ‘anomaly’ in the current State-centric international legal system.[2]

ANSAs’ degree of dispersion, influence, and effect on international politics challenge the Westphalian notion of sovereignty and Max Weber’s definition of State as an entity that successfully ‘claims the monopoly over the legitimate use of force within a given territory’.[3] Thus, ANSAs demand the establishment of strategies for interacting with them as well as to consider the possibility to ‘adapt’ international law, especially International Humanitarian Law (IHL), in light of their role.[4]

To identify the main shortfalls of the relevant IHL norms, particularly the 1949 Geneva Conventions and their Additional Protocols, firstly its necessary to establish a clear and consistent definition of ANSAs, which is still lacking both in law and in theory. Secondly, it is also fundamental to consider International Human Rights Law since it does not apply in situations of internal strife or disturbance, where ANSAs also pose serious threats.[5]

Starting with the Syrian armed conflict, this paper aims to put forward innovative solutions, such as the “backchannel diplomacy”, to foster States and ANSAs’ collaboration. Within the scope of the study, some recommendations are proposed. For instance, the establishment of a working table with the participation of States, international and regional organizations, and civil society, with the task to adapt IHL mindful of ANSAs’ role. Lastly, there is an attempt to find effective tools to ensure that ANSAs comply with IHL.

[1] Halvard Buhaug, Scott Gates, Havard Hegre and Havard Strand, ‘Global Trends in Armed Conflict’ (2007), Centre for the Study of Civil War, PRIO https://www.hbuhaug.com/wp-content/uploads/2014/02/Global-Trends_final.pdf

[2] Zakaria Daboné, ‘International law: armed groups in a state-centric system’ (2011), 93(882) International Review of the Red Cross https://international-review.icrc.org/sites/default/files/irrc-882-dabone.pdf DOI <10.1017/S1816383112000057> accessed 8 February 2022

[3] Karl Dusza, ‘Max Weber’s Conception of the State’ (1989) 3(1), International Journal of Politics, Culture, and Society http://www.jstor.org/stable/20006938 accessed 14 February 2022

[4] Werner Menski, ‘Comparative Law in a Global Context’ (2006) Cambridge http://www.cambridge.org/9780521858595 accessed 7 February 2022

[5] Global Justice Center Blog, ‘How can international humanitarian law bind non-state actors?’ July 10, 2012, https://globaljusticecenter.net/blog/441-how-can-international-humanitarian-law-bind-non-state-actors accessed 3 February 2022

Editorial Foreword

Sandrine Ampleman-Tremblay; Bastien Savin — Tue, 25 Oct 2022 00:00:00 -0400